New South Wales
Court of Appeal
CITATION: Kazi Zafar Ahmed v John Fairfax Publications Pty Limited [2006] NSWCA 6
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 4 August 2005
JUDGMENT DATE:
3 February 2006JUDGMENT OF: Santow JA at 1; McColl JA at 2; Basten JA at 105 DECISION: (1) Grant leave to appeal from the decision of Nicholas J of 1 October 2004. (2) Notice of appeal to be filed in seven days. (3) Allow the appeal as to imputations 3(d), (e), (g), (h) (i) and (m) and 5(e) and (g). (4) Respondent to pay the costs of the appeal. (5) Refuse leave to appeal in respect of Nicholas J’s orders of 22 November 2004 striking out the particulars of aggravated damages. (6) Claimant to pay the costs of the application for leave to appeal from the order striking out of the particulars of aggravated damages. CATCHWORDS: DEFAMATION - whether matters complained of reasonably capable of conveying imputations to ordinary reasonable reader - HELD - primary judge erred in striking out imputations - ordinary reasonable reader would read the matters complained of in the sense for which the claimant contended - 8 out of 10 causes of action restored - REASONS - observations concerning judicial obligation to give reasons. (D) LEGISLATION CITED: Defamation Act 1974
Migration Act 1958 (Cth)
Supreme Court Act 1970
Supreme Court Rules 1970CASES CITED: Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated & Anor [1981] HCA 39; (1981) 148 CLR 170
Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158
Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
Brittingham v Williams [1932] VLR 237
Chalmers v Payne (1835) 2 Cr M & R 156 at 159; 150 ER 67
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell & Anor v Queensland Newspapers Pty Ltd [2004] QCA 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported)
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165
Griffith v John Fairfax Publications [2004] NSWCA 300
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
In re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318
John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706
John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657
Jones v Skelton [1963] SR (NSW) 644
Lewis v Daily Telegraph Ltd [1964] AC 234
Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728
Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
North Sydney Council v Lygon (1995) 87 LGERA 435
Pettitt v Dunkley [1971] 1 NSWLR 376
Saunders v Nationwide News Pty Ltd [2005] NSWCA 404
Soulemezis v Dudley (Holdings)…
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Details
- Case
- [2006] NSWCA 6
- Decision Date
CaseChat Overview and Summary
The Court of Appeal of New South Wales considered an appeal by Mr. Ahmed against a decision of Nicholas J, who had struck out certain imputations pleaded in Mr. Ahmed's defamation action against John Fairfax Publications Pty Ltd. The core of the dispute concerned whether the matters complained of in the publication were reasonably capable of conveying the defamatory imputations Mr. Ahmed alleged to the ordinary reasonable reader.
The primary legal issue before the Court of Appeal was whether Nicholas J had erred in striking out eight of the ten causes of action pleaded by Mr. Ahmed. This required the Court to determine whether the ordinary reasonable reader would interpret the published material in the sense contended for by Mr. Ahmed, thereby giving rise to the alleged defamatory imputations.
The Court of Appeal found that Nicholas J had erred in his assessment. Applying the principles of defamation law, the Court concluded that the ordinary reasonable reader would indeed understand the matters complained of in the way Mr. Ahmed had pleaded. Consequently, the appeal was allowed in relation to specific imputations, restoring those causes of action. The Court also made observations regarding the judicial obligation to provide reasons for decisions.
The Court ordered that leave to appeal be granted, and that the appeal be allowed in respect of imputations 3(d), (e), (g), (h), (i), and (m), and 5(e) and (g). John Fairfax Publications Pty Ltd was ordered to pay the costs of the appeal. However, leave to appeal was refused concerning Nicholas J's order striking out particulars of aggravated damages, and Mr. Ahmed was ordered to pay the costs of that specific application.
The primary legal issue before the Court of Appeal was whether Nicholas J had erred in striking out eight of the ten causes of action pleaded by Mr. Ahmed. This required the Court to determine whether the ordinary reasonable reader would interpret the published material in the sense contended for by Mr. Ahmed, thereby giving rise to the alleged defamatory imputations.
The Court of Appeal found that Nicholas J had erred in his assessment. Applying the principles of defamation law, the Court concluded that the ordinary reasonable reader would indeed understand the matters complained of in the way Mr. Ahmed had pleaded. Consequently, the appeal was allowed in relation to specific imputations, restoring those causes of action. The Court also made observations regarding the judicial obligation to provide reasons for decisions.
The Court ordered that leave to appeal be granted, and that the appeal be allowed in respect of imputations 3(d), (e), (g), (h), (i), and (m), and 5(e) and (g). John Fairfax Publications Pty Ltd was ordered to pay the costs of the appeal. However, leave to appeal was refused concerning Nicholas J's order striking out particulars of aggravated damages, and Mr. Ahmed was ordered to pay the costs of that specific application.
Orders
Orders of the court
(1) Grant leave to appeal from the decision of Nicholas J of 1 October 2004. (2) Notice of appeal to be filed in seven days. (3) Allow the appeal as to imputations 3(d), (e), (g), (h) (i) and (m) and 5(e) and (g). (4) Respondent to pay the costs of the appeal. (5) Refuse leave to appeal in respect of Nicholas J’s orders of 22 November 2004 striking out the particulars of aggravated damages. (6) Claimant to pay the costs of the application for leave to appeal from the order striking out of the particulars of aggravated damages.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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